Water & Drainage
Cases
Michael John Kelly v William Francis Dea
High Court on Circuit
3 June 1965
[1966] 100 I.L.T.R 1
Budd J.
March 9 and June 3, 1965
Budd J.:
The plaintiff and the defendant are owners of lands which adjoin, and which are situate near Athlone. A drain runs to the southern boundary of both lands, proceeds along the southern boundary and thence travels on to the Kilcar river. At one time this drain was effective to drain considerable areas of both lands. The position of the drain is clearly set out on the maps produced in evidence. The defendant’s lands lie between those of the plaintiff and the Kilcar river and in order to have effective drainage of the plaintiff’s lands the waters thereof must travel to the Kilcar river, which necessitates flowing over the defendant’s lands. At the moment the drain is silted up on both plaintiff’s and the defendant’s lands and excavation of the drain on the plaintiff’s lands would be pointless and a waste of time unless the same work was done to the drain where it runs on the defendant’s lands.
The plaintiff claims to be entitled to an easement in the nature of a right to discharge water from his lands through the drain on the defendant’s lands, at present silted up, to the Kilcar river.
The situation is serious in so far as the plaintiff is concerned, as the silting up of the drain causes a substantial area of the plaintiff’s lands to be wet and marshy.
The drain on the defendant’s lands is a deep one with high banks on south and north and on the northern side the adjoining ground is higher than the land on that side of the drain. The defendant has recently done some work on portion of the drain where it is situated on his land but the plaintiff says that this work is insufficient, and does not allow a sufficient flow. I am satisfied on the evidence adduced that such is the case. The plaintiff originally also claimed a mandatory injunction to compel the defendant to cleanse the drain where it runs on the defendant’s lands and further claimed an injunction restraining the defendant by himself and his servants and agents from preventing the plaintiff by himself his servants and agents and the Roscommon County Council from entering the defendant’s lands and cleansing the drain. He also claimed damages for nuisance causing flooding to his lands. He now claims in addition damages in a general form, arising from an unlawful interference with his rights to enter and clean the drain, which in fact consists of a claim for £300 being a sum which the plaintiff says he has lost or will lose, because whereas the Roscommon County Council would have cleansed the drain free of charge had the defendant not prevented them from doing so when their machinery was in the locality, now the Council will not undertake the work and the plaintiff will have to do it himself at his own expense, and he estimates that it will cost £300.
As I have said, the plaintiff claims that the right to these reliefs flow from an easement to which he is entitled as owner and occupier of his lands. The defendant denies the easement, claims that he himself has done sufficient work on the drain to allow a proper flow of water and denies that flooding was caused. He says further in the defence that any right the plaintiff may have had was abandoned. Finally he denies that he is under any obligation to cleanse the drain, and he impliedly denies that the plaintiff has any right to enter the lands for the purpose of cleansing the drain, and says also that he is not obliged to allow the Roscommon County Council to enter his lands to cleanse the drain. In these circumstances the issues seem to be as follows:
(1) Has the plaintiff proved an existing easement;
(2) Is the work which the defendant has done sufficient to permit a proper flow of water;
(3) If the plaintiff has an easement does that enable the plaintiff to compel the defendant to cleanse the drain;
(4) If the plaintiff has an easement can he go on to the defendant’s lands for the purpose of cleansing the drain;
(5) If entitled to go on the defendant’s lands for the purpose of cleansing the drain was he prevented by the defendant from having the work done by the Roscommon County Council as his agents on his behalf;
(6) If so can he now recover the costs which it will now entail to do the job which could have done free.
An ancillary point in relation to damages may also arise because of the fact that the plaintiff would have had powers of entry and cleansing conferred upon him by the Drainage Acts and a right to charge the defendant with the cost thereof on his failure to do the work on request or on order.
As to the existence of the easement on the facts as proved by evidence before me (which the Judge here reviewed) I am satisfied that *2 the plaintiff and his predecessors in title as owners of the plaintiff’s holding have acquired a right of discharging the waters of those lands into and through the drain situate on the defendant’s lands to the Kilcar river. I am satisfied that this right was established a considerable time ago, and I am satisfied that it was never abandoned I am also satisfied as I have mentioned that the work done by the defendant was not sufficient to give a free flow of water from the plaintiff’s lands to the Kilcar river.
With regard to the claim that the plaintiff can compel the defendant to cleanse the drain Mr. Finlay cited the decision in the case of Larkin v. Smith 73 I.L.T.R. 234 which was discussed during the argument in this Court as supporting such a right. The report of that case is not as full as one would wish and the decision as reported would appear to run counter to the principles of law recognised and applied prior to that time. After other authorities had been referred to and the terms of the Drainage Acts considered Mr. Finlay did not press reliance on the case and in my view adopted the correct course. I am satisfied that a right to compel the defendant to cleanse this watercourse or drain—which I am satisfied was an artificial construction—does not exist in law and I will refuse the mandatory injunction claimed.
On the other hand I am satisfied that a person who has established an easement to discharge waters through a drain situated on the lands of another person has as ancillary to that easement a right to go upon the lands of the servient tenement for the purpose of cleansing that drain and I intend to grant an injunction restraining the defendant from preventing the plaintiff exercising that right.
On the question of damages the situation is that if the plaintiff is to have the enjoyment of his easement in the future he must do the work himself or by others at considerable expense. Is he then entitled to damages and if so what is the proper method of assessment? The case is unusual in that it relates to interference with an incorporeal right. I am satisfied that the defendant wrongfully prevented the plaintiff from cleansing the drain when he stopped cleansing of the drain by the Roscommon County Council in February, 1963, because the plaintiff was, in my view, entitled to get the work done by anyone willing to do it on his behalf. In my view that was a wrongful interference with the plaintiff’s right to clean the drain in order to preserve his easement and thus a tortious interference with his property rights and would in the ordinary course entitle the plaintiff to damages. In my opinion the claim for damages arose when the plaintiff was deprived of the opportunity of having his work done free by the County Council. By reason of that act the plaintiff will suffer loss and by way of the expenditure necessitated in the future by reason of his having to do the work himself. Such damages may be described as prospective but I think the plaintiff is entitled to recover prospective damages about which there is nothing unusual and of which numerous examples could be given, such as the recovery of an amount by way of damages to meet future and prospective medical fees. In my view those damages are not too remote to be recoverable. They were foreseeable by the defendant who was aware at the time he prevented the doing of the work by the County Council that the work would have been done free of charge and he must be taken to know the law as to the plaintiff’s rights and that his action would cause loss to the plaintiff.
I have been referred to the Drainage Acts. Under the Drainage Act, 1842 (5 & 6 Vict. Ch. 89), s. 58 the plaintiff could have called upon the defendant to do the work, and if he had refused to do so he could have secured an Order entitling him to do it himself and could recover the cost of the work from the defendant. It is submitted that such was the proper procedure to follow in the present case by way of mitigation. I do not think that the fact that such procedure was open to the plaintiff compels him to follow it. It is merely another way open to achieve the same result. This procedure would not amount to a mitigation of damages. The damage flows from the defendant’s wrongful refusal to permit the plaintiff to exercise his right in February 1963, and the plaintiff is entitled to recover damages in respect thereof. There is difficulty in the matter of assessing the amount. I have been given some figures mainly based on the restoration of the old drain, but this is a case in which the plaintiff has not given the question of damages altogether adequate consideration in that it may not be necessary to go to the original depth of the old drain to enable the easement to be enjoyed. The evidence does not disclose the quantity of work which will be really necessary, and indeed it would be very difficult to do so without actual trial and experiment. In these circumstances I think the proper course to follow would be to adjourn the matter of the assessment of damages until the work has been done and the cost ascertained. While not of itself a proper consideration in law *3 this course also has the practical advantage from the point of view of the relationship of the parties that it will give the defendant an opportunity of doing the work himself if he is now so minded which will lighten his lot somewhat. It is however to be understood that there is no stay whatsoever on the plaintiff’s right to enter. I will grant an injunction now restraining the defendant by himself or by his servants and agents from preventing the plaintiff and his servants and agents from entering upon the defendant’s lands for the purpose of cleansing the drain to which these proceedings refer and which can be identified in the Order by reference to the map before me. There will be no stay on that injunction which will operate immediately, and I will adjourn the case with liberty to re-enter for the purpose of determining outstanding matters.
McCartney v Londonderry and Lough Swilly Railway Company, Ltd.
House of Lords
[1904] 38 I.L.T.R 143
Earl of Halsbury L.C., Lords MaCnaghten, Shand1Lindley
Lord Halsbury. L.C.
Some effort was made in the argument to minimise the amount which the railway company claim to have a right to take, and, indeed, the Court of King’s Bench in Ireland preface their Judgment by a recital, which is apparently intended to limit the user, but it does not do so, nor, as Lord Justice FitzGibbon pointed out, is it easy to see what operation that recital can have. The railway company claim a right to place in the stream a pipe, which, if used to the full capacity, would take 15,000 gallons a day, but of which they say their present requirement would be satisfied with a third of that quantity. Notwithstanding the recital, it appears to me the judgment of the Court of Appeal would entitle them to take as much as they wanted up to the extent of 15,000 gallons. The pipe obstructed would take 15,000 gallons per day. The railway company claim to keep their pipe such as it is, together with an admission that they may want more than they at present take, and the Court of Appeal have affirmed the judgment of the King’s Bench. But Lord Justice Holmes also decided that even if the stream were a natural stream the defendant was entitled to the verdict, inasmuch as the plaintiffs were not entitled to the use of the stream in the manner claimed.
I am of opinion that Lord Justice Holmes was right. It seems to me that any other decision would be in conflict with the decision of your Lordships’ House in the case of The Swindon Waterworks Company v. The Berkshire Canal Navigation Company. In that case Lord Cairns, with the complete assent of Lord Hatherley and Lord Selborne, gave an elaborate exposition of riparian rights, which, though not a new decision, was nevertheless supposed to have settled and almost codified the law upon the subject. Now it is necessary to consider what it is the railway company do, because that is what they claim a right to do; they collect by a pipe placed in the stream at a point where they own some land adjoining the stream, a tank for water to be used in the boilers of their locomotive engines. The engines, of course, consume the water in the course of their journeys, the railway itself is forty miles in length, but is connected with other railways over which their engines run for a much greater distance. My Lords, if the question were the reasonableness in respect of quantity, I should think it a most unreasonable thing that the use of a stream passing through a very small area of riparian land should be made to extend to forty miles of country or wherever else the exigencies of the railway service might require. Speaking of it simply in respect of quantity, I think it more unreasonable than supplying drinking water to an asylum built on the banks, which has been held to be unlawful. But in truth it is not a question of the quantity at all. I now apply Lord Cairns’ words, which I think are literally applicable here. “The use which they” (in this case the railway company) “claim the right to make of it is not for the purpose of their tenements at all, but is a use which virtually amounts to a complete diversion of the stream … It is a confiscation of the rights of the lower owner.” It is to be observed that Lord Cairns used this language when a water company who were riparian proprietors had taken water to supply their customers in a neighbouring town, but in which case it was found, as a fact, that the complaining plaintiffs were not damaged at all. For another reason, the question of damage here has become immaterial. The railway company set up a right to do what they have done. It is not here a question of an injury being so trifling that a Court of Equity will accordingly not interpose by the remedy of an injunction. Here they not only set up a right, but actually ask for a declaration of their right to do what they have done.
My Lords, I have said that the judgment of Lord Cairns had codified the rights of riparian proprietors, and I used that phrase because I do not think there is any novelty in the decision. It certainly has been the law as understood in England for more than half a century. The only part of Lord Justice FitzGibbon’s judgment (who has admirably dealt with every other part of the case) with which I am unable to concur, is that in which he expresses the opinion that Vice-Chancellor Bacon’s judgment was right upon the facts proved before him. I cannot agree to that. It may be that the Vice-Chancellor would have been justified in refusing an injunction, and left the plaintiff to his remedy at law, but unfortunately he uses language which seems to affirm the right of the railway company to carry the water along their line, and justifies this as a riparian use. To this I cannot assent. For the reasons I have given, I think this is not a riparian use at all, and, except upon the ground I have suggested, I must say I think the decision was wrong.
I move your Lordships that the appeal should be allowed, that the judgment of Lord Justice Holmes be restored, and that the Respondents do pay to the appellant the costs both here and below. *145
Lord Macnaghten.
I prefer the judgment of Lord Justice FitzGibbon, and what now remains of the judgment of Lord Justice Holmes, to the opinion of the learned Judges from whom they differ. Lord Justice Holmes, who tried the case at the Derry Assizes without a jury, rested his decision on two grounds. In the first place, he came to the conclusion that the stream about which this litigation has arisen was really an artificial watercourse, and that McCartney and his predecessors in title had had the control and management of it from a point above the proposed intake of the railway company for a period beyond living memory. In the second place, assuming the stream to be a natural water-course, he held that the thing which the railway company proposed to do was not within the rights attached to riparian ownership. For some reason or other, which I do not undertand, the first ground of decision was abandoned in the Court of King’s Bench and in the Court of Appeal. I regret the course that was taken. The matter seems to me to be worthy of serious consideration, and I cannot altogether accept the view of one of the learned Judges in the Court of Appeal who dealt with the question and disposed of it summarily without argument. However, the point is not open now. The appellant must be held to the concession made on his behalf, and the case must be treated as if McCartney’s mill-race were to all intents and purposes a natural stream. Even so, if it had not been for the judgment of the Lord Chancellor and the great preponderance of judicial opinion in Ireland, I confess I should have thought the case very plain and covered by authority. There are, as it seems to me, three ways in which a person whose lands are intersected or bounded by a running stream may use the water to which the situation of his property gives him access. He may use it for ordinary or primary purposes—for domestic purposes, and the wants of his cattle. He may use it also for some other purposes—sometimes called extraordinary or secondary purposes—provided those purposes are connected with or incident to his land, and provided that certain conditions are complied with. Then he may possibly take advantage of his position to use the water for purposes foreign to or unconnected with his riparian tenement. His rights in the first two cases are not quite the same. In the third case he has no rights at all. Now it seems to me that the first question your Lordships have to consider is, under what category does the proposed user of the railway company fall ? Certainly it is not the ordinary or primary use of a flowing stream, nor is it, I think, one of those extraordinary uses connected with or incident to a riparian tenement which are permissible under certain conditions. In the ordinary or primary use of flowing water a person dwelling on the banks of a stream is under no restriction. In the exercise of his ordinary rights he may exhaust the water altogether. No lower proprietor can complain of that. In the exercise of rights extraordinary but permissible, the limit of which has never been accurately defined and probably is incapable of accurate definition, a riparian owner is under considerable restrictions. The use must be reasonable. The purposes of which the water is taken must be connected with his tenement, and he is bound to restore the water which he takes and uses for those purposes substantially undiminished in volume and unaltered in character.
What the railway company propose to do is to abstract a certain portion of the water of the stream, to carry it along their own property to a tank half a mile off, and then to consume it in working their locomotive engines. They have more than 40 miles of railway of their own, and they have running powers over the lines of other companies. They have no intention of restoring to the stream a single drop of the water they mean to abstract, nor is it possible for them, under the circumstances, to do anything of the kind. Is that a user, which, though extraordinary, is yet legitimate and permissible ? I should say, certainly not. So far as the interests of the lower proprietors, are concerned they mean to efface and blot out as it were that portion of the stream which they propose to abstract. They mean to do so for their own gain—to save themselves the expense of paying for the water required for the purposes of their business or gathering it for themselves. And they claim to do this as of right. It seems to me that they might just as well claim to sell the water. And, indeed, Mr. Ronan, in his able argument, did not shrink from that position. He boldly contended that they would be perfectly justified in selling the water, or doing anything they pleased with it, provided the lower proprietor was not practically injured. By way of clenching this argument, Mr. Evans pointed out that the learned Judge at the trial expressed no opinion as to the extent to which McCartney’s water power would or might be diminished by what the railway company proposed to do. And he succeeded, I think, in showing that there was no reported case in which the Court had interfered where the injury complained of was so inconsiderable as that which would be likely to occur in the present case. That may be very true, but all the cases to which he referred were cases where the injury complained of was done in the exercise, or assumed exercise, of an authorised and permissible user. That seems to me to make all the difference. *146
I said I thought this case was covered by authority. It seems to me to be entirely covered by the decision of this House in the case of the Swindon Waterworks Company v. The Wilts and Berks Navigation Canal Company. There Lord Cairns, L.C., gave a judgment as to the rights of riparian owners so complete and exhaustive that I venture to say no case has since come before the Courts, not excepting the case of Kensit v. Great Eastern Railway, which might not have been disposed of by the application of one or two sentences taken from it, and that perhaps without any very great loss to the general stock of legal knowledge. [Cites the judgments in that case at length.]
The question in that case in regard to the rights of the Navigation company as owners of Wayte’s tenement, and the pretended rights of the Waterworks company, was precisely the same question as that which has arisen in the present case. The railway company claim the right to do that which they propose to do. That was admittedly the question at the trial before Holmes, L.J., and therefore it was not incumbent upon McCartney to do more than to show a very slight case of actual or probable injury. He has shown a certain amount of injury, not very substantial I admit, but still I think quite sufficient—sufficient to entitle him to damages at law when a claim of right is set up, and sufficient therefore to entitle him to a declaration in equity. It may well be, if I may refer to a suggestion thrown out by Lord Cairns in the Swindon Case that if the railway company had said, “We do not claim a right at all, but what we propose to do is such a trivial matter that it cannot do you any practical injury” [at p. 705 of L. R. 7 H. L. Cas.], the Court might have thought fit not to interfere; but that is not the line which the railway company took. They claimed a right, they admitted that if that issue was found against them their whole case must fail. The question of right was not merely the sole question at the trial. It was really the sole question at issue before the Court of King’s Bench and the Court of Appeal. And those Courts have made a declaration of right, but a declaration I think in favour of the wrong party. They have declared in effect that the railway company are entitled to abstract and consume for purposes unconnected with the tenement which gives access to the stream a portion of the waters of the stream which can by no possibility be restored to it. That declaration seems to me to be contrary to principle and precedent. I do not think it necessary to say anything more. But I may venture to remind your Lordships that the law laid down in this House in the Swindon Case was no new doctrine. It is stated clearly and precisely by Parke, B., in the Queen’s Bench in Embrey v. Owen, and by Cresswell, J., in delivering the judgment of the Court of Common Pleas in Sampson v. Hoddinott. I have only to add that in my opinion it would be extravagant to suggest that the system of the Londonderry and Lough Swilly Railway Company and the lines of other companies over which they have running powers, form one single riparian tenement, or that the railway company, by virtue of contact with this system at one point, possess throughout their system and all through the lines of other companies over which they have running powers, rights analogous to those possessed by persons who dwell on the banks of a river in respect of their riverside property. It may be difficult to say how far the rights of the railway company as riparian owners extend, but they can hardly go to such a length as that.
I am of opinion that the judgments of the Court of Appeal and the Court of King’s Bench ought to be reversed, and the judgment of Holmes, L.J., restored, and that the respondents ought to pay the costs both here and below. But in order to prevent any dispute in future, I think it would be well to preface the order by a declaration of opinion that the railway company are not entitled to use the stream in question for the purpose of supplying their locomotive engines with water.
Lord Lindley.
The water which the railway company contend they are entitled to take is wanted for use over the whole line, including the little strip of land which immediately adjoins the stream and is crossed by it. But the whole line cannot be regarded as riparian property; and the quantity of water required for use on the short strip which immediately adjoins the stream is too small to be of any consequence to either party. The right to take that much is not worth discussing, and may be conceded; but the concession will not decide the important question which your Lordships have to determine. My Lords, although the damage suffered, or likely to be suffered, by the mill-owner is small, yet it is plain that, if the railway company are not entitled to retain and use their pipe as intended, but are nevertheless allowed to do so without interruption for 20 years, they will be infringing the mill-owner’s rights all that time, and will, at the end of the 20 years, gain a prescriptive right to continue such use for ever. Such an invasion of his rights the mill-owner is entitled to prevent. This has been long well settled. In the note to Mellor v. Spateman 1 Wms. Saund, 346b, it is said: “Wherever any act injures another’s right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion *147 of the right without proof of any specific injury.” This principle has been repeatedly recognised and acted upon in cases involving water rights— e.g., Sampson v. Hoddinott, and Harrop v. Hurst L. R. 4 Ex. 43. The principle must be borne in mind when reliance is placed on judicial decisions in cases in which it was unnecessary to allude to it. The principle was conceded and recognised in Kensit v. Great Eastern Railway which was decided on the ground that what was there complained of was not in excess of the defendant’s rights and never could grow into a prescriptive right, inasmuch as all the water taken from the stream was returned to it undiminished in quantity and undeteriorated in quality. This was the ratio decidendi of that case. The question for your Lordships’ decision is therefore reduced to this, viz.:—Will the use of this pipe by the railway company infringe the mill-owner’s rights ? Or, in other words, are the railway company entitled to use this pipe for the purposes for which they have put it down ? Two cases only have arisen in which the right of a railway company to take water from a stream for its locomotive engines has called for judicial decision. One is Att. Gen. v. Great Eastern Railway Company, in which Lord Romilly expressed his opinion that a railway company having a line adjoining a stream had no right to take water from it for supplying their locomotives. The other is The Earl of Sandwich v. Great Northern Railway Company, in which Vice-Chancellor Bacon decided that they had. In the first of these cases, which was affirmed by Lord Hatherley ( see L. R. 6 Ch. 572) the abstraction of the water seriously impeded the navigation of the stream, and Lord Hatherley decided the case on that ground. In Lord Sandwich’s case no substantial damage was proved, and the Vice-Chancellor considered that the railway company were entitled to take what water they wanted so long as they did not inflict any substantial damage on other riparian owners. He held, in short, that the railway company were not exceeding their own rights and were not infringing the rights of the plaintiff. This decision is in favour of the railway company in the present case. I cannot, however, think it right in point of law. It is, in my opinion, impossible to reconcile it with the principles laid down and acted on by this house in The Swindon Waterworks Company v. Berkshire Canal Navigation Company. In that case a water company had bought a mill by a stream and took water from it to supply a neighbouring town. They were held not entitled to do this, although the plaintiffs, who were lower riparian owners, were not, in fact, damaged by the defendant’s operations. Lord Cairns there stated the law as to the water rights of riparian owners, and it is unnecessary to do more than to refer to his judgment. The railway company in this case became riparian owners simply by buying a small strip of land crossed by the stream. They thereby acquired the water rights, whatever they were, of the owner of the land so bought, but they acquired no greater rights than he could give them in respect of that land. These rights did not include the right to take water from the stream for consumption off the land, the possession of which conferred his rights. He could not lawfully take water from the stream in any appreciable quantity and sell it for use miles away, or, indeed, use it himself at a distance from his riparian tenement without returning it to the stream. Such a user is unreasonable, and can only be justified by a grant from lower riparian owners or by prescription. This I take to be now settled by The Stockport Waterworks Company v. Potter, 3 H. and C. 300, by the decisions of the Court of Appeal, and of your Lordships’ House in the Swindon Case, and by Ormerod v. The Todmorden Mill Company. The intended use of the water in this case by the railway company was reasonable enough from their point of view, but such use would have been in excess of their rights, and an infringement of the rights of other persons in the position of the defendant. Such a user would be an infringement of his rights.
I am of opinion, therefore, that the appeal should be allowed, and that the judgment of Lord Justice Holmes should be restored, and that the railway company should pay the costs here and below.
Craig v M’Cance
[1910] 44 I.L.T.R 90
Barton J.
Barton, J., in the course of his judgment, said:—The plaintiff, in May, 1905, bought a small property at Ballyvester, near Donaghadee, for £200. It was held under a Landed Estates Court conveyance, dated in 1890, “subject to the existing rights of all persons in respect of the water of all streams and watercourses which bound or flow through the lands hereby conveyed.” The property comprised a plantation, through which flowed the Ballybay burn. The plantation sloped with more or less of a fall to the burn; above the plantation, and separated from it by a boreen, was defendant’s field. When plaintiff bought this property in 1905 there were gaps in his fence which he filled up. One of them was in the fence dividing the plantation from the boreen; this gap was opposite one of the pillars of an old entrance gate to defendant’s field, and was the natural outlet for the surface drainage of defendant’s field. From that gap across the boreen to the old gap, and thence through plaintiff’s plantation down to the burn, is the natural course by which such drainage would escape. But I do not rest my decision upon any natural right. From the evidence of a number of witnesses I infer that from time immemorial there have been three drains in the defendant’s field—one running down along the county road, one down the centre of the field, and a crossdrain connecting the other two. They all met at the gap opposite the pillar, passed under the pillar and under the boreen by a culvert to a point four feet from plaintiff’s hedge, whence they passed through the gap by a drain, or depression or watercourse straight down to the burn. The entrance to the culvert under the pillar was of a very rough construction; but under the boreen was a made culvert. The balance of evidence is in favour of its being an old culvert. The existence from time immemorial of this easement to discharge surface drainage in this way has been very clearly proved by defendant’s witnesses, unless there is general perjury. Besides, there is strong probability to support that view. Where else did the water escape? It is said that if the road authorities consented, an escape to the burn might be provided at considerable expense alongside the county road; but nobody suggests that the drains ever discharged in that direction. Where else, then, did they discharge, unless it was along the course which is deposed to by all the neighbours, who have known the place for many years? I do not mean to say that I implicitly accept all the evidence of the defendant and his son, literally and in all respects, when it differs from that of the plaintiff and his family. I do not believe they have any intention of misleading the Court. I doubt whether the defendant or his son, after the plaintiff stopped up the gap in the fence opposite the pillar, opened the hole in the fence so soon as they represent. I am disposed to suspect that they may have become aware that discontinuance imperils an easement, and that they may have ante-dated that event. My suspicions may be groundless; but even if they did not open the hole immediately, I do not think there was such a discontinuance of the easement as to amount to an abandonment or as to affect the defendant’s right. I am also disposed to think that the defendant or his son did more cutting on plaintiff’s land than they represent when they cut the hole in the fence. But if they did they were really only restoring the status quo ante so far as they could. I infer that there must have been from the gap to the burn something in the nature of a drain, or depression, or watercourse, although plaintiff may not have recognised it as such; and that the plaintiff filled up part of this depression or watercourse when he made up the gap. He did so without any intention of interfering with any water right—it was summer time: he did not appreciate that it was a watercourse. It is, however, admitted by his witnesses that there remains part of such a depression capable at all events of carrying off his own surface water. I believe it represents the old watercourse which served to carry the defendant’s surface drainage from time immemorial from the gap to the burn. Plaintiff could offer very little direct evidence as to the history and user of the locus in quo. Plaintiff’s counsel relied principally upon inferences from measurements, but arguments and inferences founded upon measurements are outweighed by proved facts with which they are reconcileable. The balance of probability and testimony is overwhelmingly in favour of the existence of this ancient right, which I take to be the right, or one of the rights, referred to in the plaintiff’s Landed Estates Court conveyance. There remains the question whether any increased burden has been thrown on the servient tenement. The drains on the defendant’s lands have for a number of years remained unscoured, with the result that the two long drains did not work freely, and the crossdrain became so overgrown as to escape the notice of some casual observers. At Easter last *92 the plaintiff scoured these drains, and the flow of water became considerably more free and strong. This may have contributed to the fall of the pillar, the cause of which was not the subject of direct evidence. I infer that the old drains were only scoured, and were not deepened. If the increased flow came from scouring, it did not in my opinion involve such an increased burden as plaintiff could complain of. The right to scour the drains was not lost by anything that occurred in this case. The owner of a servient tenement which is subject to an easement of this kind cannot complain of the drains being scoured; perhaps he might complain of their not being scoured if he was interested in maintaining a normal flow of water. Scouring merely restores them to their normal condition. Defendant has made two new pipe drains down his field, and several smaller field drains, all of which are connected with the three old drains. It was argued that this was such an alteration of the easement, and such an increase of the burden on the servient tenement as to destroy the right and to entitle the plaintiff to an injunction, and Cawkswell v. Russell, 26 L. J. Ex. 34, was relied on. I infer from the evidence of Mr. Sweeney that these new drains have not appreciably increased the nature or quantum of the servitude. The principle applicable to cases in which the servient owner claims that the easement has been destroyed by an alteration involving an additional burden, was referred to by Grove, L.J., in Harvey v. Walters, L. R. 8 C. P. 162, 166, where he said, at page 166, “that there must be an additional or different servitude, and the change must be material either in the nature or the quantum of the servitude imposed.”Cawkswell v. Russell, which was so much relied on, was a case of an alteration which involved a different servitude—namely, a claim to discharge dirty water instead of a right to discharge clean water. If the new drains (as distinguished from the scouring of the old drains) had appreciably increased the flow of water, some interesting questions would arise. Defendant says that the measure of his right to discharge surface water is the size of the culvert at the boreen. I express no opinion on that point. It has also been suggested that the easement to be inferred from all the circumstances of the case is an easement to discharge all surface drainage water within the limits of ordinary and reasonable husbandry. These and other questions may arise if it can be shown that the burden of this easement is materially increased by new drains. I am very sorry for the plaintiff. I am sure he has acted bona fide without any intention of interfering with a watercourse; at the same time the reference in his title deeds should have made him cautious when closing up a gap, which a careful inspection would have shown him was opposite a culvert coming from upper lands. I must dismiss the action, with costs.
Macnaghten and Others v Baird
Court of Appeal.
[1903] 37 I.L.T.R 80
FitzGibbon Walker Holmes L.JJ.
Barton, J., dissented in the following judgment:—
Barton, J.—The user by the defendant of this alleged easement cannot be referred to any legal origin, and the plaintiffs are entitled to a decree. The Civil Bill was brought for trespass. The defendant justified under an alleged easement or right to pass over the lands in question, for the purpose of taking water from a well. There are three plaintiffs—Lord Macnaghten, who is owner in fee of all the lands in question in the case, i.e., both of the alleged servient tenement and of the alleged dominant tenement, R. L. Yates, a licensee of Lord Macnaghten, and Robert Moore, a weekly tenant under Lord Macnaghten of the holding within which the well is situate, and on which the alleged trespass was committed. The defendant, Wm. Baird, is a weekly tenant of one Gilfillan, who is a judicial tenant of Lord Macnaghten of a farm on the opposite side of the county road from the well. [His Lordship stated the facts found in the case stated.] The question which is left for our decision is whether upon these facts the user of defendant can be properly attributed to a legal origin. The answer to that question must be in the negative. Three possible legal origins have been suggested. Firstly, it was suggested that an easement might have been acquired by prescription. Secondly, it was suggested that in 1875 Lord Macnaghten may be presumed to have demised the farm on the other side of the road to Gilfillan, with this easement appurtenant to the demise. Thirdly, it was suggested that we ought to presume a lost grant either from Moore to Baird, or from Lord Macnaghten to Gilfillan. I shall deal with each of these suggestions, and give my reasons for rejecting them.
In the first place, prescription is out of the case, because Lord Macnaghten was in possession of all the lands in 1875. There was complete unity of possession in Lord Macnaghten at that date. This puts an end to the possibility of a legal origin founded on prescription. In the next place, I come to the suggestion that Lord Macnaghten may be presumed to have demised the farm on the other side of the road to Gilfillan, with this easement appurtenant to the demise. I understand that it was on this ground that the County Court Judge decided in favour of the defendant. An implied demise of this kind cannot afford a defence to the defendant Baird in this case, unless it means an implied demise to Gilfillan, at the time of the letting to him in 1875, of a right for him and his cottier tenants, present and future, to pass over the lands in question and take water from the well. This would be an extensive right. We could not infer an implied demise of that kind from user, unless there was a finding, or unless we could find, that such a right was necessary for the reasonable user of Gilfillan’s holding; or, in other words, that Gilfillan’s holding could not be conveniently enjoyed without it (Clancy v. Byrne, 11 Ir. L. T. R. 94; Conlan v. Gavin, 9 Ir. L. T. R. 198). It is stated in the case that certain cottiers on the lands now held by Gilfillan did use the well before 1875, but there is not, and probably could not be, any finding that this alleged right for Gilfillan and his cottiers, present and future, to take water from this well was so necessary for the reasonable use of Gilfillan’s holding as to be essential for the convenient enjoyment of the farm. In my opinion, in the absence of such a finding, we cannot hold that there was an implied demise to Gilfilllan in 1875 of this easement as appurtenant to his holding.
The only remaining question is whether this user can be attributed to a lost grant. I think it cannot. This becomes tolerably clear if we only bear in mind the facts of the case and the principles on which a lost grant may be presumed. It was suggested that on the *81 authority of Hanna v. Pollock, 1900, 2 Ir. R. 664, a lost grant might be presumed from Moore, the weekly cottier tenant of Lord Macnaghten, to Baird, the weekly cottier tenant of Gilfillan. It is not necessary to consider whether such a thing could be possible legally, because the facts of this case do not lay the foundation for such an argument. In the first place, there is no finding that Moore’s cottier holding had been in existence for 20 years, and no grant could be presumed from 20 years’ user unless the servient tenement had been in existence for that period. In the second place, the case finds that Baird exercised his alleged right not on his own behalf, but under Gilfillan’s authority; so Gilfillan must be the grantee, and Gilfillan’s holding must be the dominant tenement, if a lost grant is to be presumed at all. This was recognised by Mr. Horner, who argued the case for the defendant on the basis of a lost grant from Lord Macnaghten to Gilfillan. But it is not possible in law to presume a lost grant of this kind from a landlord to his tenant. Such an easement, if granted by Lord Macnaghten, must bind the fee, and it is repugnant to our law to suppose that a tenant of a holding under a landlord can acquire by user an easement attached to his holding, as against his landlord, over the lands of his own landlord. I understand this to be the effect of the decision in Gayford v. Moffett, L. R. 4 Ch. 133, a case in which Lord Cairns gave the judgment in the House of Lords, and described such a supposition as an utter violation of the first principles which regulate the relation of landlord and tenant. Gayford v. Moffett is quite consistent with the judgment of the majority of the Court of Appeal in Hanna v. Pollock. In the latter case, Walker, L.J., at p. 699, was careful to point out that the view of the majority of the Court of Appeal in that case did not in the least invade the doctrine of Gayford v. Moffett…. The question ought to be answered in the negative.
From the decision of the majority the plaintiff appealed.
Holmes, L.J., said—It is impossible to find a case in which it has been held that a user by a tenant, which commenced after the creation of his tenancy, can support a right to an easement, as against his landlord, over lands remaining in his landlord’s possession.